Proposal Would Bar Federal Agencies From Some Job Applicant Questions

Date: May 02, 2016

“Ban The Box” Measure Would Prevent Questions About Some Applicants’ Criminal Histories

One of the most contentious issues in current employment law involves pressure on businesses in the public and private sector to implement so-called “ban the box” laws, or measures that would bar questions about potential employees’ criminal history from job applications. The Office of Personnel Management has issued a proposed rule that would effectively “ban the box” for a large number of potential Federal employees. In a blog post commenting on the proposed rule, OPM Director Beth Cobert said the rule would delay the point in the hiring process for many Federal jobs at which agencies would be allowed to ask about a prospective employee’s criminal history. Agencies would be barred from inquiring about this history until they’ve made a conditional employment offer to an applicant. Cobert argued that this change in the process “prevents candidates from being eliminated before they have a chance to demonstrate their qualifications,” and that asking about applicants’ criminal backgrounds prior to this part of the process “may discourage motivated, well-qualified individuals who have served their time from applying for a Federal job” or might “lead to the premature disqualification of otherwise eligible candidates, regardless of whether an arrest actually resulted in a conviction, or whether consideration of an applicant’s criminal history is justified by business necessity.” The New York Times said the new policy “will not go as far as some employee rights’ groups had hoped,” in part because Federal contractors “will be encouraged, but not required, to follow the ban.” The Times also pointed out that some types of Federal jobs would be exempt from the OPM’s proposed policy, and a criminal history would continue to automatically disqualify people from some positions in areas such as law enforcement.

What This Means For Small Businesses

Pressure to “ban the box” is growing at a disconcerting pace for businesses large and small. Recently in a response in the New York Times “Room For Debate” column, NFIB President and CEO Juanita Duggan pointed out that small business owners often struggle to find and retain good employees. By banning the box, Duggan argued, small business owners will have a harder time talking to employers “about a criminal record at a time that is convenient for them,” and could instead spend a lengthy hiring process with a candidate “only to find a worker is unqualified at the last minute.” When it comes to small businesses, “lost time is lost income.” The OPM’s new policy only applies to Federal agencies, but this could set a troubling precedent for the private sector.

Additional Reading

The AP also reported on the OPM’s proposed rule. NFIB previously discussed how “ban the box” legislation is affecting small businesses across the US.

Note: this article is intended to keep small business owners up on the latest news. It does not necessarily represent the policy stances of NFIB.

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